Home | Databases | WorldLII | Search | Feedback Journal of South Pacific Law

Vanuatu's Accession to the WTO and the WIPO: A Reflection on Patent and Pharmaceutical Technology (Article) [1998] JSPL 27; (1998) 2 Journal of South Pacific Law

Vanuatu’s Accession to the WTO and the WIPO:

A Reflection on Patent and Pharmaceutical Technology

Mohammed Ahmadu
Lecturer
School of Law
University of the South Pacific

INTRODUCTION

The arithmetic rate of progression of industrial development in a number of capital importing countries is partly attributable to the absence of an appropriate technological base.

This problem is further compounded when viewed against the background of the patent systems both at the national and international levels.

The focus of this paper is to briefly examine the relevance of technology to development in general. But, in particular, it is to address the point as to whether by offering legal protection to pharmaceutical technology, Vanuatu will substantially benefit from the outcome of such protection system. The relevance of this could be better understood against the background of Vanuatu’s claim of belonging to the United Nation’s classification of a least developing country.

As a caveat however, it is important to stress from the outset that the paper does not intend to venture into theories of development relating to patents. Nor does repeat long debates on the legal concept of technology. This has been extensively considered elsewhere.ⁱ

The point that the paper seeks to establish is, the extent to which Vanuatu’s accession to the WTOⁱⁱ, WIPOⁱⁱⁱ, and its local patent system are capable of fostering research, development and production of pharmaceuticals locally.

To start with, a short discourse on the geo-economic indicators of the country would help in explaining the nature of the economy and how this might impact on the country’s subsequent accession to the WTO.

GEO-ECONOMIC FACTORS

Vanuatu became an independent nation in 1980. It is a republic and a member of the Commonwealth. Vanuatu is a scattered archipelago comprising of 80 islands. It is located between 12 and 21 degree South latitude and 166 and 171 degree East longitude. The population was estimated to be 150,864 in 1991. There are about 105 different languages spoken throughout the country^iv

The total land area is 11,880 square kilometres and the land tenure system is based on customary ownership. The population is mainly rural-based and about 80% depend on agriculture. The country has rich forest reserves and abundant supply of fresh water. The economy is mainly import-oriented with some exports of cocoa, beef, coffee and kava^v. Coconuts account for 33% of the country’s export earnings while gross receipts in tourism in 1991 amounted to US$25.1 million. The per capita income is about Vatu 121,358 (A$1379). The country has a fledging off-shore finance centre which was established in 1986, the first in the South Pacific.^vi

CURRENT DEBATE ON WTO AND WIPO

Vanuatu is a signatory to SPARTECA giving her preferential access to Australian and New Zealand markets. She is also a member of the LOME Convention.^vii As a member of the ACP block Vanuatu also enjoys preferential treatment in her trade with the European Union.

In spite of the nation’s participation in regional trading arrangements there has been very little comment on Vanuatu’s accession to the WTO and subsequently the WIPO.^viii The full impact of the accession and the expected benefits might only be felt when the current economic liberalisation and public sector restructuring policies have been fully accomplished.

Under the guidance of the Asian Development Bank, the government has embarked upon a restructuring drive which is expected to usher in a reformed and accountable civil service machinery. The reform is also expected to improve the Government’s revenue base as well as to prepare the economy for active participation in international and global trading activities.

To be able to appreciate the central point in this paper, it would also be imperative to provide a definition of patent, as well as, explain the basic steps in pharmaceutical production.

DEFINITION

A patent is defined as: "... a statutory privilege granted by a government to investors for a fixed period of years to exclude other persons from manufacturing, using or selling patented product or process".^ix

PHARMACEUTICAL MANUFACTURE

This involves the following processes;

1. production (or import) of the chemical intermediaries required by the pharmaceutical industry;
2. Production of raw materials (active ingredients, bulk drugs) synthethised by single or multiple stage batch from chemical intermediaries.

100. The production of raw materials of the final dosage forms, which may contain one or more active ingredients;

4. Packaging. ^x

SCOPE OF PATENT PROTECTION

The increasing globalisation of trade in goods and services has now created a matrix of relationship between technology and the aspects of law that are required to protect it. Increasing pressure by capital exporting countries has resulted in a direct link between the sale of a product and the embodied technology in the goods.^xi The effect of this alliance has been to extend the scope of legal protection of patents to cover both the product and the process involved in the production of the goods, or the supply of the service.

The implication of this extension is that all countries, regardless of their level of technological advancement, are now expected to offer the same degree of protection to all patented goods or processes, whether manufactured locally or imported from overseas.

Article 27(1) of the GATT TRIPS Agreement of 1994^xii supports this assertion. It provides:

"1.Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products of processes, in all fields of technology , provided that they are new, involve an inventive step and are capable of industrial application. Subject to paragraph 3 of Article 65, paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patents rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced."